Tulsa Criminal Defense

Appellate decisions and case law and statory citations. Possible links to other blogs and web sites. Good discussion of Oklahoma Criminal Law and Tulsa Criminal Law cases and DUI and DWI cases and Drug and Marijuana and Methamphetamine and Cocaine Cases. Possible criminal defenses and general advise.

There is no such thing as an open and shut Oklahoma DUI
case .
. . there just isn't.

And yet even assuming the allegations are true .
. . which they are NOT .
. . there are still a number of DUI defenses that
could result in reduced or even dismissed DUI charges. This is why is it always critical
to consult with an experienced Oklahoma
DUI defense attorney before making the decision to plead guilty. Whether your case was in Tulsa or any surrounding city like Broken Arrow, Bixby, Glenpool, Owasso, Sand Springs, or Sapulpa, Oklahoma, the laws concerning DUI or drunk driving or APC in Oklahoma are the same and you only have 15 days to request a hearing on your driver's license which will then impose an automatic stay on the suspension of your license for about 6 months to a year or more. If you fail to request a hearing within 15 days, then you face the possible suspension of your driver's license and additional penalties. Always contact a lawyer within 15 days!

As one of the top Tulsa DUI
defense lawyers Glen R. Graham explains, “sometimes people plead guilty
to a dui just because they don’t know about the defenses available. It is my job to evaluate your case and inform
you of those defenses.”

In this article, this Tulsa DUI defense lawyer will
summarize 20 defenses that can help you beat your Oklahoma DUI charges. If you have additional questions or would
like to speak with this Tulsa Oklahoma
DUI defense attorney, we invite you to contact us.

21 Ways to Beat Your Oklahoma DUI Charges

1. Requesting a timely hearing on your driver’s license within 15 days of
the date of your arrest is critical for you to prevent the suspension of your
driver’s license. This right is
waived if not requested within 15 days of the date of your arrest. By making a timely request you will obtain a
temporary driver’s license for about 6 months to a year while awaiting the
hearing on your driver’s license. If you
wait more than 15 days then the only way to obtain a temporary driver’s
license, if you qualify, is to pay a fee to the department of public safety and
to have installed in your motor vehicle a interlock device which costs about
$80 dollars per month for six months to sometimes many years depending upon the
facts of your case (if you qualify).

Note: Refusing to take a
DUI breath or blood test does not prove you are guilty of DUI. It may be considered by a jury but it is NOT
an automatic conviction. You do have the
right under the law to refuse to take a test.

2. Oklahoma DUI breath testing is subject to a wide
variety of errors

Oklahoma DUI breath tests are subject to a wide range of
errors. These include (but are not limited to)

instrument
malfunction,

improper
handling by the police,

your
physiological conditions (such as GERD or your diet, both of which are
discussed below), and even

outside
environmental factors (such as radio frequency interference, which is also
described below).

While DUI breath testing is the most common way to measure
one's BAC, it's not always an accurate one. This is because of the fact
that a DUI breath test doesn't directly measure the amount of alcohol in your
blood. It measures the amount of alcohol present in your breath and then
converts that amount to determine the amount of alcohol in your blood.
As a result, DUI breath testing is susceptible to a variety of outside
influences that can generate an erroneously high BAC reading.

are all recognized medical conditions that create possible
mouth alcohol situations. This is because these conditions produce a flow
of acid that travels from the stomach into the mouth.

When this occurs just prior to or during a DUI breath test,
the alcohol that travels from your stomach to your mouth disguises the deep
lung air that the breath testing instrument is intended to measure. As a
result, GERD, acid reflux, and/or
heartburn can cause a falsely high BAC on an Oklahoma DUI breath test.

5. A low-carbohydrate, high-protein Atkins-style diet or
conditions such as diabetes or hypoglycemia can trick a DUI breath test and
result in a false high BAC

Self-imposed conditions such as Atkins-style diets and
medical conditions such as diabetes and
hypoglycemia are actually capable of self-producing
isopropyl alcohol. This is because bodies that are deprived of
carbohydrates turn to stored fat for energy. This process produces
ketones. Ketones, when eliminated from the body through breath and urine,
convert into isopropyl alcohol.

The problem...with respect to DUI breath testing...is that
most Oklahoma DUI breath testing instruments aren't sophisticated enough to
distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the
type of alcohol that we drink). As a result, Atkins-style diets or
diabetes or hypoglycemia can trick a DUI breath testing instrument into
producing a falsely high BAC. Similarly, diabetes can fool the breathalyzer and
should be considered as a DUI defense.

6. "Rising Blood Alcohol" can mean your
BAC was higher when you took the test than when you were actually driving

Alcohol takes a certain amount of time (typically between 50
minutes and three hours) to absorb into your system. If, for example, you
had just recently finished drinking...and were investigated for DUI shortly
thereafter...your alcohol may not have reached its peak absorption rate.
When this is the case, your blood alcohol level is still rising, which
can cause a false high DUI BAC result.

This is because your BAC at the time of your blood or breath
test is irrelevant...what is relevant is what your BAC is at the time of driving.
Just because you have a BAC that is above the legal limit when you submit
to a DUI chemical test, does not mean that's what your BAC was at the time of
driving...particularly if you were "on the rise".

Prosecutors like to assume that everyone is beyond their
peak absorption phase when they submit to Oklahoma DUI chemical testing.
We know, however, that this isn't always the case and that rising blood
alcohol is a very legitimate DUI defense. This "on the rise"
defense applies to both DUI blood testing and DUI breath testing.

There are a variety of factors that could taint the results
of your DUI blood test results:

Blood
fermentation,

improper
storage of your blood sample, and

blood
contamination

are just a few of the reasons why your blood tests results
might not be accurate. This is why we say that Oklahoma DUI blood testing
is not fool proof.

Depending on the circumstances surrounding the collection
and storage of your DUI blood test, your Oklahoma DUI defense lawyer may be
able to have your BAC results excluded from evidence. If your BAC is
suppressed, your charge must be dismissed.

8. Violations of Title 47 and/or of the Oklahoma Board of Tests can compromise your BAC results

Title 47 and the Oklahoma Board of Tests sets forth the
requirements for

collecting,

storing,
and

analyzing

DUI chemical tests. These regulations are very
specific, and any violation of Oklahoma’s Title 47 or the Oklahoma Board of Tests rules can compromise your DUI BAC
results. .

This means that if, for example,

it's
not a trained technician who draws your DUI blood sample, or

if
the DUI breath testing instrument that you use hasn't been calibrated
according to code,

your BAC could be excluded from evidence...or at the very
least, its accuracy will be called into question.

9. If the officer didn't have probable cause to stop,
detain, or arrest you for DUI, the evidence--and the case--may get thrown out
of court

Before the police can

stop
your car,

detain
you to conduct a DUI investigation, or

arrest
you for a Oklahoma DUI,

they must have a reasonable suspicion or reasonable belief
that you are engaged in criminal activity. This reasonable belief is a
legal standard known as probable cause.

If an officer doesn't have the probable cause necessary
before engaging in any one of these stages, any evidence that is obtained as a
result of that illegal procedure will be suppressed. When a judge
suppresses evidence, it means that the prosecution cannot use it against you.
As a result, evidence obtained without probable cause usually results in
reduced or dismissed Oklahoma DUI charges.

10. The officer didn't advise you of your Miranda rights

Despite common misunderstanding, Miranda rights aren't always
required in a Oklahoma DUI arrest. They are, however required when (1)
you have been arrested, and (2) the officer is conducting a
custodial interrogation. A "custodial interrogation" takes
place when an officer asks you questions designed to solicit incriminating
responses after you have been arrested.

If these conditions have both been satisfied, the officer
must advise you of your Miranda rights or risk having any subsequent statements
excluded from evidence. Depending on the significance of those
statements, their exclusion could result in reduced or dismissed DUI charges.

11. There are innocent explanations for physical signs
and symptoms of DUI

Most likely, the officer will claim that you exhibited

red/watery
eyes,

a
flushed face,

slurred
speech,

an
unsteady gait, and

had
the odor of an alcoholic beverage on your breath.

Whether or not this description is accurate, the fact is
that none of these signs or symptoms necessarily means that you are DUI.

And even if you were drinking, these characteristics don't
in and of themselves indicate that you were under the influence of alcohol
and/or drugs. Additionally, innocent explanations such as

fatigue,

allergies,

the
sun,

physical
injury,

illness...

can explain the physical signs and symptoms that are
commonly associated with DUI.

Even the most reliable Oklahoma field sobriety tests aren’t
accurate indicators of alcohol and/or drug impairment. The three
tests that have actual data to support their trustworthiness are only between
65-77% accurate at detecting impairment...and that's only if they are precisely
administered and scored (which is rarely the case).

And just like the innocent explanations that can account for
physical signs of impairment, these same explanations can explain poor
performance on FSTs. Additionally, factors such as

officer-induced
intimidation,

bad
weather conditions,

poor
lighting,

uneven
surface conditions, and

awkward
footwear, such as boots, dress shoes or high heels

that have nothing to do with alcohol and/or drugs can cause
an individual to "fail" his/her field sobriety tests.

13. DUI isn't the only explanation for bad driving

While the police like to think that all bad drivers must be
DUI, we know this isn't the case.

Weaving,

speeding,
and even

erratic
driving

are often a result of inattention or distraction.
Maybe you were

eating,

trying
to play a CD, or

trying
to pick up something that dropped, or

distracted
by your passengers.

The bottom line is that DUI isn't the only explanation for
bad driving. The reality is that sober people exhibit moments of bad driving
just as impaired drivers.

14. Just because your blood alcohol concentration (BAC)
was over the legal limit doesn't mean you were necessarily DUI

Blood alcohol concentration (BAC) is affected by many
different factors, not just the actual amount of alcohol in one's body.
These factors include (but are not limited to):

Each of these factors can independently affect the accuracy
of your BAC results, so don't let the number fool you...an illegal BAC doesn't
necessarily mean you are guilty of DUI.

15. There are inherent error rates with Oklahoma DUI
chemical testing

Even assuming that all testing conditions are perfect...

the
testing equipment has been properly maintained and calibrated, and

there
aren't any physiological conditions that could adversely affect the
test...

there is still an inherent error rate with Oklahoma DUI
chemical testing.

Experts agree that Oklahoma DUI chemical testing has a +/-
error rate of between 0.005-0.02%. As a result, a Oklahoma DUI defense
attorney can challenge BAC results that are between 0.08-0.10%, since they
could be lower than the minimum 0.08% required by Vehicle Code 23152b driving
with a BAC of at least 0.08%.

If you were arrested at a DUI roadblock, there are a variety
of issues that a Oklahoma criminal defense attorney will investigate. Oklahoma
DUI sobriety checkpoints must adhere to very strict legal requirements . . . if
they don't, you could be falsely arrested for DUI.

These legal requirements relate to the operation of the DUI
checkpoint. Some examples include (but are not limited to):

having
supervising officers organize and oversee the checkpoint,

making
sure that the field officers follow a predetermined formula for stopping
cars, and

17. Radio Frequency Interference (RFI) can contribute to
a falsely high BAC result

Radio frequency interference ("RFI") can cause a Oklahoma
DUI chemical blood or breath test to produce an erroneously high BAC.
This is because almost all electronic devices...such as those used to
analyze DUI blood and breath samples...are susceptible to RFI or EFI
(electromagnetic interference).

The electronic components in these instruments can be
affected by nearby radio waves. Radio transmission from

patrol
cars,

the
automatic door-unlocking devices found in crime labs,

cell
phones,

microwaves,

fluorescent
lights, etc...

these are just a few examples of the types of equipment that
are capable of interfering with DUI blood and breath testing results.

18. If you're not exhibiting signs of mental impairment,
chances are you aren't DUI

With respect to alcohol and/or drugs, there are two types of
impairment: mental impairment and physical impairment. Most of the
impairment that officers claim people exhibit during Oklahoma DUI
investigations is physical. Officers routinely testify that those arrested
for drunk driving exhibit

an
unsteady gait,

poor
coordination,

red/watery
eyes, and

slurred
speech.

However, experts agree that alcohol and/or drug-related
impairment always presents itself in the form of mental impairment first.
This means that if an officer testifies that you displayed physical but
not mental impairment, your alleged impairment was unrelated to alcohol and/or
drug use. As a result, if you weren't exhibiting signs of mental
impairment, you probably weren't DUI.

19. Your DUI BAC doesn't accurately reflect your level of
impairment

If a significant discrepancy exists between your BAC and
your alleged level of impairment, something is wrong. This may be the
case where you either (1) reportedly exhibited no impairment, or (2) exhibited
even slight impairment, but your BAC was high...by even as much as two or three
times the legal limit.

When this type of situation occurs (sometimes referred to as
a "disconnect" case), and your DUI BAC doesn't accurately reflect
your alleged level of impairment, the evidence can't be trusted...something
just doesn't add up.

20. You weren't driving

It isn't enough for the police to prove you were under the
influence...the crime is driving under the influence.
If, for example,

you
were involved in an accident and no one saw you driving
the car, or

if
the police found you when you were in your parked car,

then, it will be more difficult for the prosecution to prove
one of the key elements of a DUI: that you drove. If the D.A. can't prove
that you were driving, you can't be convicted of an Oklahoma DUI. The “no
driving” DUI defense should be considered anytime the police didn't
actually see you operating the vehicle. And finally...

21. Even if you were DUI, police misconduct may absolve
you of your DUI charges

If you can demonstrate police misconduct, then your DUI charges
may have to be dismissed . .
. even if you were actually
guilty of DUI. This is because proper police procedures must be followed.
For example,

DUI
police reports must be accurate,

Title
47 procedures must be complied with, and

courtroom
testimony must be truthful.

If these (or any other) conditions are purposely manipulated,
evidence that was illegally obtained or fabricated will be suppressed.
Depending on how severely this impacts the prosecutor's case, he/she may
choose to reduce or even dismiss your charges.

Disclaimer – contacting this attorney does not constitute
the employment of this attorney until officially hired. Each case is different and the facts and law
applying to your case may be different in your jurisdiction. Always, consult with a criminal defense
attorney prior to making legal decisions.

by Glen R. Graham - Criminal Defense Lawyer - Tulsa, Oklahoma

Each case is different and the specific facts and circumstances of your case may differ. You should always consult an attorney in person before making important legal decisions which may have long term and permanent consequences that affect the rest of you life. It is important that you be advised that this does not constitute legal advice to you and that you should contact a local attorney and take immediate actions to protect your rights under the law. Another name for a work permit is a "modified driver's license." Oklahoma should consider passing a statute that allows people a work permit to drive to and from work only (without an interlock) but instead uses the "modified driver's license" system which allows people to drive anywhere and not just to and from work. *Note the same driver's license lawsbelow apply to both drunk driving (DUI) and actual physical control of a motor vehicle while under the influence (APC) offenses in Oklahoma.

In Oklahoma, you only have fifteen (15) calender days (NO EXTENSIONS) to request an administrative hearing on your right to drive or driver's license in Oklahoma from thedate of your arrest. THIS IS COMPLETELY SEPARATE FROM YOUR COURT DATE!!!

In the recent past, this 15 days may not have seemed important and you might even waive your right to a hearing thinking that you might SAVE money --- BUT THIS IS NO LONGER TRUE!!! In fact it MAY cost you more money in the long run to waive you right to a driver's license hearing. (*It depends upon your circumstances - contact your local attorney immediately)

The laws were changed in Oklahoma to require that everyone who either gets convicted of a DUI or tests above the limit for alcohol or intoxicating substances or refuses a breath/blood test --- must have installed in their vehicle a breath machine called an intoxilyzer which you blow into to start you car at a cost of at least $75 dollars per month --- UNLESS you take the proper actions to request an administrative hearing on your driver's license. Depending upon the circumstances you may be required to have the interlock installed anywhere from 6 months up to 8 years or longer at $75 per month UNLESS you make a timely request for an administrative hearing within 15 days from the date of your arrest.

If you request an administrative hearing on your driver's license within 15 days of the date of your arrest, then you get a FREE DRIVER'S LICENSE without an interlock device good at least until the date of the hearing on your driver's license which may be 90 days to even 6 months or more from the date that you request the administrative hearing.

The Oklahoma legislature in response to public pressure and lobbying passed a series of laws to get tougher on DUI offenses. One of the new laws requires that if you fail to request an administrative hearing within 15 days or if you get convicted of a dui offense or if you lose your administrative driver's license hearing then the following may happen:

(*If request administrative hearing within 15 days from date of arrest then get FREE driver's license without interlock device till at least date of driver's license administrative hearing which may be 90 days to 6 months or longer from date of request or until or unless you are convicted in court.)

By "offense" that includes prior arrests that were reduced. It means any prior revocation of a driver's license for testing above the limit or refusing to take the tests.

THE NEW LAWS PUNISH YOU MORE SEVERELY FOR --- EXERCISING YOUR CONSTITUTIONAL RIGHT TO REFUSE TO TAKE A BREATH TEST OR BLOOD TEST!!!

First offense DUI with a breath test between .08 to .14 - if lose hearing, or waive hearing or do not request hearing within 15 days then: Interlock required for 6 months. Get license back without interlock after 6 months. ($75 x 6 = $450 PLUS OTHER)

First offense DUI with a breath test at .15 or above or if REFUSE to take test then - if lose hearing, or waive hearing or do not request hearing within 15 days then: Interlock required for 6 months for temporary license plus 18 more months after that at $75 per month for the interlock device. ($75 x 24 = $1,800 PLUS)

Second offense DUI (within 10 years) - if lose hearing or waive hearing or do not request hearing within 15 days then: Interlock required for 1 year during the modification period and for 4 years
after that (total of 5 years) (*APPLIES to ALL DUI 2nd Arrests both .08-.14 or .15 or above and refusals) ($75 x 60 = $4,500 PLUS)

On All – DUI 3rd
= requires interlock for 3 years modified license plus for an additional 5 years
after that for a total of 8 years. ($75 x 96 = $7,200 PLUS)

Important advantages to requesting an ADMINISTRATIVE HEARING INCLUDE: You get a FREE DRIVER'S LICENSE without an interlock for 90 days to 6 months or longer. You also have a chance of winning the administrative hearing and getting your license back without an interlock device. The driver's license administrative hearing is an opportunity for your lawyer to obtain discovery or to cross examine the arresting officer and to find out if there are any holes in the case.

If you win the hearing on your license you may get it back UNLESS you are convicted of the offense in court.

One important advantage to requesting the administrative hearing is that it also delays you having to pay a lot of administrative fees for a temporary driver's license while you are going to court and trying to pay your attorney and trying to complete all the court requirements --- such as dui school and similar things.

Some people have a lot of difficulty both paying the bond fees, paying their attorney, completing court requirements, and trying to pay for a modified driver's license all at the SAME TIME and they need the extra 90 days to 6 months in order to be able to attempt to do so.

A disadvantage is that if you lose the administrative hearing then the ONLY way that you can get a modified driver's license is by appealing the decision to the District Court which costs more money. You would have to pay court costs of about $148 plus post a cash only appeal bond of $250 plus pay additional attorney fees to appeal to District Court in order to get a modified driver's license.

NEW POLICY NOTICE: New DPS policy is to treat all ALTERNATIVE requests for hearing or work permit as a request for a hearing only. So, you need to specify if you want a hearing or if you want the work permit - modified license in place of the hearing. You need to make the decision immediately before sending in the request within 15 days of the date of the arrest.

I
can assist you in requesting in
the alternative a modified drivers
license permit to drive or in the
alternative an administrative hearing on your driver's license. We can send a letter to the Dept of Public
Safety (by fax) and they have to receive it within 15 days of
the date of your arrest (not just mailed but actually received).
There are no extensions of time and it is a flat 15 days
including counting weekends and counting holidays. If the final day for receipt falls on a
holiday or weekend then it is extended to the following Monday or day that they
are open, but you should not wait till the last minute to send them the letter. If you are here in my office, then I can
assist you in faxing this request today.

In response to your letter, the Department of Public
Safety will mail you a letter in about 5 to 6 weeks
that offers you two (2) choices:

Option
One (1): (Usually the Least
Expensive Option but not always)

In response to
your letter, the Dept. of Public Safety will mail you a letter in about 5-6 weeks. It will say that you have thirty (30) days from the date of their
letter to do the following:

Go to the local office for
the Department of Public Safety Office which is located at 14002 E. 21st Street (Old Eastland Mall Complex - Lower
Level) in Tulsa, Oklahoma - Located at
approximately 21st Street and
145th E. Ave.

Pay them a fee of $175
dollars in form of a money order or cashier’s check for a temporary drivers license fee.

Have installed in your
vehicle an interlock ignition device that you blow into to start your car and blow
into about every 15 to 30 minutes. It costs about $75 dollars per month plus
either an installation fee of $75 or a removal fee of about $75. The DPS
will require an original
installation certificate for proof of the interlock.

Provide proof of current
insurance.

Completion of the FORM FOR A
MODIFIED DRIVERS LICENSE.

IF BUT ONLY IF YOU ARE DRIVING AN EMPLOYERS
VEHICLE then they want an affidavit from the employer.

You will be required to
surrender all proof of driving privileges – such as any letters to drive on or
any new drivers licenses that you may have obtained. And the DPS issues you a
new photo id drivers license with interlock required notation on it.

Normally on
your first (1st) DUI or APC
offense or arrest, the period of time is usually six (6) months, unless your
breath result was .15 or higheror you refused to take the test.

1st
One: But, if your result was .15 or more or if you refused the test then interlock for 24
months.

On All
- DUI 2nd = requires interlock for 1 year during the modification
period and for 4 years after that (total
of 5 years) (*APPLIES to ALL DUI 2nd Arrests any .08 or above or refusals)

On All – DUI 3rd = requires interlock for
3 years modified license plus for an additional 5 years after that for a total
of 8 years. (Applies to All - any BAC .08 or Above or Refusals)

In response to the letter to them
they send you a letter in about 5-6 weeks.

You only have thirty (30) days from the date of their
letter offering you a modified drivers license to complete the requirements and
go to the DPS office at 21st & 145th E. Ave. After thirty (30) days, if they have not received their application
and fee of $175 dollars from you then it
will be scheduled for a hearing at the Dept. of Public Safety. You could call them at the phone number on their
letter to see if they will allow you
more time to send them their application or the $175 dollars. If they don’t receive your money and
application timely within 30 days of
the date of their letter then they will schedule it for a hearing and the only way to get a license if by
appealing and paying a substantial amount of money to appeal.

Option
Two (2): (Sometimes the More Difficult Option) You can choose to have an administrative hearing by not sending back
the application for a modified drivers license or by sending a letter to them telling them that you want the hearing.

Again -
initially you only have 15 days from the
date of your arrest to make the
request, but if it is a response to their letter then you have 30 days from the
date of their letter. If they do not
receive their offered application for a modified drivers license within 30 days
of the date of their letter then they will schedule it for an administrative
hearing. You will need and should hire
an attorney to appear at the administrative hearing. My fee is negotiable.

(*Unless you get convicted of the DUI or APC) If you win the
DPS hearing then you do NOT have to have an interlock device installed in your
vehicle. It is very difficult to win a
DPS license administrative hearing because it is a civil administrative
proceeding and not a court hearing.
Hearsay is admissible and the hearing judge is a DPS official and not a
independent judge. It would be similar
to having the Chief Law Enforcement Officer listen to the evidence to decide if
correct procedures were followed and if you should lose your license. However, even if you win the hearing, if you get convicted of the DUI or APC, then the DPS may require you to have an interlock device by virtue of the conviction.

It is very important to note that by having an
administrative hearing, you could gain insight into what mistakes if any that
the officer may have made in your case but if you lose the administrative
hearing then to keep a license you have
to appeal which costs more money. If you lose the administrative hearing then
you have 30 days to appeal the matter to the district court which requires
payment of additional monies.

TYPICAL EXAMPLE NOT ALWAYS THIS BUT AN EXAMPLE:

Pay Attorney fees of for admin hearing
$Negotiable

Pay Court Costs of About $148.00

Pay Cash Bond Fee of $250.00

Pay Attorney fees for
Appeal/Petition/Order $Negotiable

TOTAL: $Negotiable plus the above costs ($398)

IF YOU CHOSE TO WAIVE THE DPS
HEARING THEN YOU SAVE THIS MONEY AND NOT HAVE TO PAY THIS ADDITIONAL
MONEY. HOWEVER, THEN THE DPS requires you to pay them the $175
fee and to have a interlock installed in your vehicle for $75 per month. However,
if you won the DPS hearing then you could avoid having the interlock
device installed in your vehicle unless you got convicted of the offense.

You do not have to appeal – You could choose to
agree to a modified license with an interlock device in PLACE of the
administrative hearing. Or, you can lose your license instead by not doing
anything, but the only way to
keep a license is to appeal if you choose to have an administrative hearing but
if you choose to waive the hearing and pay for the modified license in place of
a hearing then you DO NOT HAVE TO APPEAL because you did not have a hearing.

Lastly, you do
not have to have a hearing. In most
cases, you can waive your right to an administrative hearing and pay for a temporary drivers license and interlock device in place of an administrative hearing = it is
usually cheaper not to have a hearing.

It is also
important to note that if you get convicted of a driving under the influence
case, then the department of public safety may suspend your driver's license by
virtue of receiving a conviction for a dui separately from the administrative hearing
- which means that even if you win the
administrative hearing that the department of public safety may suspend you
drivers license but if you agree to a modified drivers license in
place of the hearing then you would not lose you driving privilege if you
were convicted of the DUI.

Sometimes people making a purchase of cold medicine are called "smurfs" by law enforcement officials and other parties. The word "smurf" comes from the television and comic series called "The Smurfs." Smurfs are imaginary blue cartoon characters and typically archetypes of everyday people. In the 1980's, the smurf cartoon series was one of the most popular television programs. It is unclear why law enforcement and others would call over the counter cold medicine buyers "smurfs."

Low grade drug runners are sometimes called "mules" because they a viewed as people with mule like characteristics, in that, they work for other people who are the masters, and the mules are just the "stupid pack animals" that work for the masters, or people in control. The analogy would be that the smurfs are people who a lower echelon workers or no-bodies who work for the Papa Smurf or the people in control and that the smurfs just do the buying for someone else. Calling people derogatory names like "smurfs" seems to be questionable although it may be understandable and easier to say that calling them "lower echelons" who are not the actual manufacturers.

Oklahoma laws dealing with possession of a precursor in listed in Title 63 of the Oklahoma Statutes. But, there are also federal laws with have limits on possession of a precursor. Sometimes the government will file cases in both state and federal court, or they may dismiss the state charge and re-file the case in federal court.

“B. Except as provided in this subsection, possession of a drug product containing more than nine (9) grams of ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers shall constitute a rebuttable presumption of the intent to use the product as a precursor to methamphetamine or another controlled substance. The rebuttable presumption established by this subsection shall not apply to the following persons who are lawfully possessing drug products in the course of legitimate business . . .

A useful quote from this case is: “In effect, the state asks us to conclude that a jury could infer the requisite "conscious objective to" manufacture methamphetamine from the same facts that constitute the misdemeanor offense of possession of pseudoephedrine. On this record, however, such an inference requires too great a leap and would require speculation, rather than logical inference. See State v. Lopez-Medina, 143 Or.App. 195, 201, 923 P.2d 1240 (1996)style="font-size:130%;"> (evidence is insufficient to support an inference when the conclusion to be drawn from it requires "too great an inferential leap" because the logic is too strained). The same is true of any inference that defendant was working "in concert" with a specific individual who had the wherewithal to manufacture methamphetamine and the physical equipment and site to do it. Not a shred of 631*631 evidence in this record suggests the existence of such a person.”

This case indicates that merely possessing cold medicine does not prove possession with intent to manufacture. If the purchaser denies that he or she is purchasing the cold medicine for anything illegal like manufacturing a controlled drug, then the state would be required to show some evidence to prove the intent. Usually, the defendant makes an incriminating statement or they may possess evidence that indicates that they had intent to manufacture.

In sum, the mere possession does not automatically prove possession of a precursor with intent to manufacture, but under Oklahoma law, there is a “rebuttable presumption” that the possession of 9 grams of the prohibited substance is with intent to manufacture.

Under Oklahoma law, Title 63 O.S. Section 2-212 (A), states:

"No person shall purchase, receive, or otherwise acquire more than nine (9) grams of any product, mixture, or preparation within any thirty (30) day period. Provided, the requirements of this subsection shall not apply to any quantity of such product, mixture or preparation dispensed pursuant to a valid prescription.

Federal law prohibits a person from purchasing a product containing more than 3.6 grams of a product containing Ephedrine, pseudoephedrine or phenylpropanolamine. The Combat Methamphetamine Epidemic Act of 2005 can be found in Title VII (7) of the USA Patriot Improvement and Reauthorization Act of 2005 (Public Law 109-177), and it was implemented into the Controlled Substances Act of Title 21 U.S.C. Sections 801-971. For additional information see: http://www.deadiversion.usdoj.gov

Each case is different but the same basic rules and same laws apply all over the state of Oklahoma. In a DUI or APC case, you only have 15 calendar days from the date of your arrest to request in the alternative an administrative hearing and/or a modified driver's license. This is a strict time limit which is enforced.

Our office handles these cases, and you should call us to schedule an appointement at Graham Law Office - 918-260-8184. The facts of each case are different and you should contact an attorney immediately to find out about your legal rights and the best way to handle your specific circumstances. Broken Arrow criminal defense attorney cases and Tulsa criminal defense attorney cases and Bixby, Owasso, Glenpool, and Sapulpa criminal defense attorney cases are all based upon the same basic state laws. Our website has more information - Criminal Defense Attorney in Oklahoma - Broken Arrow, Tulsa, Bixby, Owasso, Glenpool, Sapulpa, and others.

You may have a defense in your case. There may be motions that need to be filed to protect your rights and you only have 15 calendar days to make a proper written request to the Department of Public Safety to attempt to save your driver's license.

While you may have been given a temporary license good for 30 days, in fine print, it states you only have 15 days to request an administrative hearing and/or modified drivers license. The 15 day time limit is strictly enforced by the Department of Public Safety. Even though you court date may be continued beyond the 15 days, under the law, the driver's license matter is treated completely separate from your criminal case in court. Everyone is presumed to know the law even though most people do not know about the 15 day time limit, but ignorance of the law is not considered a valid excuse or exception to the 15 day limit.

In regard to misdemeanor, possession of marijuana cases, you do not have to make any driver's license request, but you should contact an attorney to protect your legal rights as soon as possible. You may have a defense in your case. Some times a plea bargain for a deferred sentence to get the sentence dismissed and expunged at the end of a short period of time may be worked out in your case. It is also important to know that some judges may require you to submit to a random urine test for drugs so you should immediately cease and stop using if you have been using. On occasion, the court may want to see a drug test result before the sentence is imposed and some may require an assessment. You should contact an attorney to help you in this matter.

The Graham Law Office - Glen R. Graham and Associates - strives to help you achieve success in your case and the best available options. Please call us at (918) 260-8184 to schedule an appointment to discuss your case.

The Graham Law firm handles DUI and DWI and other cases through-out Oklahoma including Tulsa, Broken Arrow,Glenpool, Bixby, Jenks, Sand Springs, Sapulpa, and Pawhuska, and Wagoner County and others. Glen R. Graham is an experienced DUI Attorney with over 25 years in practice. Call us at (918) 260-8184 so we can begin assisting you.

NEW POLICY NOTICE: New DPS policy is to treat all ALTERNATIVE requests for hearing or work permit as a request for a hearing only. So, you need to specify if you want a hearing or if you want the work permit - modified license in place of the hearing. You need to make the decision immediately before sending in the request within 15 days of the date of the arrest.

Typically, a DUI arrest in Oklahoma can be a traumatic experience. The person will have numerous questions and fears. You should immediately contact an attorney. We at the Graham Law Firm specialize in DUI - DWI - APC and alcohol related offenses. With over 25 years experience and numerous jury trials and successful negotiations, we have the proven experience necessary to obtain a result you can live with in your case. Call us today at (918) 260-8184 and we can schedule an appointment to begin working on your case.

You ONLY have fifteen (15) days from the date of your arrest to request an administrative hearing to attempt to save your drivers license. Normally, you are given a temporary license good for 30 days but in fine print it tells you that you only have 15 days from the date of your arrest to request an administrative hearing on your drivers license. This is COMPLETELY SEPARATE from your court date and your court matter on your DUI case.

The difference between a charge of driving under the influence of alcohol or any intoxilyzing substance (DUI) and the charge of driving while impaired (DWI) is based upon the blood alcohol content (BAC) in your breath or blood sample as tested by a machine or if you refused a test then it is based upon an officer's opinion. If you BAC test result is above .08 or more then you will be charged with DUI. If you BAC test is between .05 and .08, then you will be charged with driving while impaired (DWI). If you are under the age of 21 years, then if you have any measurable BAC then you can be charged as DUI under the age of 21 years. If you BAC test is above .15 then you can be charged with aggravated DUI.

Second offense, DUI may be charged as a felony. It is not always charged as a felony because it depends on what happened on the first DUI and whether the first DUI was a court of record or not. There are many defenses to a felony charge of DUI. Sometimes the prior misdemeanor DUI can not be used as a valid enhancement because it was not in a court of record or there is inadequate records concerning whether the right to counsel was waived or not. An experienced DUI attorney such as Glen R. Graham can argue all of the legal defenses which should be aggressively litigated in your case.

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